DMA to FCC: ‘Forbear’ Enforcement of New TCPA Rules

NEW YORK – The Direct Marketing Association (DMA) says the Federal Communications Commission (FCC) should not enforce some of the new regulations aimed at preventing mobile spam.

The new Telephone Consumer Protection Act (TCPA) rules – which became effective on October 16 – have two key elements:

They prohibit marketers from using auto-dialers to send SMS ads to consumers without their explicit written consent.

They require marketers to inform consumers that they will be contacted via auto-dialers, and that they don't have to agree to receive the messages.

The DMA says the problem is that many marketers who previously obtained consumers' consent didn't include the now-mandatory language. The DMA is asking the FCC to “forbear” from requiring that language in situations where consumers previously consented to receive SMS ads.

In the petition filed last week, the DMA writes: “While there may be no harm in preserving the rule as it is worded and applying it to consents obtained after October 16, 2013, there is no valid reason in law or policy to subject marketers to exposure to lawsuits and regulatory sanctions for perfectly valid written consent agreements obtained before the effective date of the rule.”

The Mobile Engagement Providers Coalition – which includes the Mobile Marketing Association, 4INFO, Tatango and others – has joined the DMA and has also asked the FCC to declare that companies need not obtain new opt-ins from people who previously agreed to receive SMS ads.

The coalition also says the new rules could lead to class-action lawsuits.

MediaPost News reports that attorney Marc Roth, a partner in the advertising, marketing and media practice at Manatt Phelps and Phillips, says the new rules create a quandary for mobile marketers who obtained consumers' consent under the prior rules. He says that marketers risk enforcement actions if they rely on opt-ins obtained under the old rules. But if companies ask people who previously consented to do so for a second time, they might decline – which regulators could interpret as reflecting a desire to opt-out.

Roth adds that even if the FCC agrees to refrain from enforcing the new rules – as the DMA has requested – the regulations are still on the books and can still serve as the basis for lawsuits. “For the class-action guys, those are the rules,” he says. “They're still free to go after companies that don't comply.”